Ubabueze Chijioke Emmaunle @ Jojo v. State (NCT of Delhi)

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that— (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”

14. Section 195(1)(a)(i) Cr.P.C mandates that no Court shall take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code except on the complaint in writing of by a public servant or of some other public servant to whom the public servant is subordinate. Section 174A IPC is covered under Section 195(1)(a)(i). In the present case, no complaint has been filed.

15. Learned Counsel for the Appellant places reliance on the Judgment of the Apex Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567, and more particularly on paragraphs No.27 to 33 of the said Judgment which reads as under:

documents given in evidence.—(1) No court shall take cognizance— (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Penal Code, 1860, or *** except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;”

28. Section 195(1)(a)(i) CrPC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 CrPC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in CrPC like Sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those sections. (Vide Govind Mehta v. State of Bihar [(1971) 3 SCC 329: 1971 SCC (Cri) 608: AIR 1971 SC 1708], Patel Laljibhai Somabhai v. State of Gujarat [(1971) 2 SCC 376: 1971 SCC (Cri) 548: AIR 1971 SC 1935], Surjit Singh v. Balbir Singh [(1996) 3 SCC 533: 1996 SCC (Cri) 521], State of Punjab v. Raj Singh [(1998) 2 SCC 391: 1998 SCC (Cri) 642], K. Vengadachalam v. K.C. Palanisamy [(2005) 7 SCC 352: 2005 SCC (Cri) 1673] and Iqbal Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC 370: 2005 SCC (Cri) 1101].)

29. The test of whether there is evasion or noncompliance with Section 195 CrPC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq v. State of W.B. [(1953) 1 SCC 637: AIR 1953 SC 293: 1953 Cri LJ 1232] and Durgacharan Naik v. State of Orissa [AIR 1966 SC 1775: 1966 Cri LJ 1491], this Court held that the provisions of this section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 CrPC. Thus, cognizance of such an offence cannot be taken by misdescribing it or by putting a wrong label on it.

30. In M.S. Ahlawat v. State of Haryana [(2000) 1 SCC 278: 2000 SCC (Cri) 193: AIR 2000 SC 168] this Court considered the matter at length and held as under: (SCC p. 282, para 5)

therein unless there is a complaint in writing as required under that section.”(emphasis added)

31. In Sachida Nand Singh v. State of Bihar [(1998) 2 SCC 493: 1998 SCC (Cri) 660] this Court while dealing with this issue observed as under: (SCC pp. 497-98, para 7)

32. In Daulat Ram v. State of Punjab [AIR 1962 SC 1206: (1962) 2 Cri LJ 286] this Court considered the nature of the provisions of Section 195 CrPC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the public servant concerned, the Tahsildar, had not filed any complaint. This Court held as under: (AIR pp. 1207-08, paras 4- 5)

5. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside.”(emphasis added)

33. Thus, in view of the above, the law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 CrPC are mandatory. Non-compliance with it would vitiate the prosecution and all other consequential orders. The court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.” (emphasis supplied)

16. A perusal of the abovementioned Judgment shows that there must be a complaint by the public servant whose lawful order has not been complied with and the complaint must be in writing and that the provisions of Section 195 CrPC are mandatory and Non-compliance with it would vitiate the prosecution and all other consequential orders. It is pertinent to mention that the said Judgment arose when the principal offence was one under Section 302 IPC and along with it the accused therein was also charged with offence under Section 188 IPC.

17. Learned Counsel for the Respondent also places reliance on the Judgment passed by a co-ordinate Bench of this Court in Maneesh Goomer v. State, 2012 SCC Online Del 66, wherein it has been held that Section 174A IPC does not fall within the scope of Section 195(1)(a)(i) Cr.P.C. The said Judgment has been followed by co-ordinate Benches of this Court in A. Krishna Reddy v. CBI, 2017 SCC Online Del 7266; Purushottam Dev Arya v. CBI, 2017 SCC Online Del 7267. He, therefore, states that the Judgment passed by the co-ordinate Bench of this Court in Maneesh Goomer (supra) would be binding on the present case.

18. At this juncture, it is pertinent to extract the relevant portions of the Judgment passed by the co-ordinate Bench of this Court in Maneesh Goomer (supra) and the same reads as under:

Section 82 Cr.P.C. was illegal as the proclamation was not in the newspaper as directed by the Court but in the other newspaper, it may be noted that Section 82(2) Cr.P.C. provides for the procedure for publishing the proclamation. Clause (i) of Sub-Section (2) is mandatory in nature as it directs that the proclamation shall be publically read in some conspicuous place of the town in which the person ordinarily resides, shall be affixed in some conspicuous place of the house in which the person ordinarily resides, and shall be affixed in some conspicuous part of the Court-house. However, Clause (ii) of Section 82(2) Cr.P.C. is not mandatory and it states that the Court may also if it thinks fit direct a copy of the proclamation to be published in a daily newspaper circulated in the place in which such person ordinarily resides. Since Clause

(ii) is not mandatory in nature, the non-adherence to the strict compliance thereon will not vitiate the process under Section 82 Cr.P.C. The abovementioned FIR for offence punishable under Section 174-A IPC is an independent cause of action and merely because the complaint case under Section 138 NI Act is settled, there is no reason that the abovementioned FIR be also quashed.”

19. It is pertinent to mention at this juncture that the Judgment passed by the Apex Court in C. Muniappan (supra) has not been brought to the notice of the Co-ordinate Bench of this Court.

20. Learned Counsel for the Appellant also places reliance on the Judgment passed by other High Courts, namely, Sumit & Anr. v. State of U.P. & Ors., 2024 SCC OnLine All 153; Pradeep Kumar v. State of Punjab & Anr., 2023:PHHC:110479; Rajinder Ghazta v. State of H.P., 2024 SCC Online HP 261; holding that the Judgment passed by the coordinate Bench of this Court in Maneesh Goomer (supra) does not lay down the correct position of law qua Section 174A IPC and Section 195 Cr.P.C.

21. Learned Counsel for the Appellant also states that after insertion of Section 174-A in I.P.C. as well as in First Schedule of Cr. P.C., further amendment was also made in the year 2006 in Section 195(1)(b) Cr. P.C., but no amendment was made in Section 195(1)(a)(i) Cr. P.C. Therefore, at the time of inserting Section 174-A in I.P.C. as well as in First Schedule of Cr. P.C. after Section 174, legislature was well aware about the category of offences u/s 195(1)(a) (i) Cr. P.C. and for this reason, while making amendment in Section 195(1)(b) Cr. P.C. in 2006, Section 195(1)(a)(i) Cr. P.C. was kept untouched knowingly by the legislature.

22. The said argument cannot be accepted for the reason that Section 195 Cr.P.C. includes all offences punishable under Sections 172-188 IPC (both inclusive) and, therefore, insertion of Section 174A IPC does not warrant any consequential amendment because Section 174A IPC would automatically have been included under the ambit of Section 195 Cr.P.C. In any event, it cannot be said that the Legislature has committed mistake by keeping Section 195(1)(a)(i) Cr. P.C. untouched. The Apex Court in Nalinakhya Bysack v. Shyam Sunder Haldar, (1953) 1 SCC 167, has held as under:

there is some defect in the phraseology used by the legislature the court cannot, as pointed out in Crawford v. Spooner [Crawford v. Spooner, (1846-49)

6 Moo PC 1: (1846-50) 4 Moo IA 179: 13 ER 582: 1846 SCC OnLine PC 7], aid the legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russell of Killowen in Hansraj Gupta v. Official Liquidators of Dehra Dun-Mussoorie Electric Tramway Co. Ltd. [Hansraj Gupta v. Official Liquidators of Dehra Dun-Mussoorie Electric Tramway Co. Ltd., (1932-33) 60 IA 13: (1933) 37 LW 445: AIR 1933 PC 63: 1932 SCC OnLine PC 71], for others than the courts to remedy the defect.”

23. Similarly, the Apex Court in Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271, has observed as under:

and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional.

14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. v. Dr. Vijay Anand Maharaj [AIR 1963 SC 946: (1963) 1 SCR 1], Rananjaya Singh v. Baijnath Singh [AIR 1954 SC 749: (1955) 1 SCR 671], Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907: 1958 SCR 360], Nyadar Singh v. Union of India [(1988) 4 SCC 170: 1988 SCC (L&S) 934: (1988) 8 ATC 226: AIR 1988 SC 1979], J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P. [AIR 1961 SC 1170] and Ghanshyamdas v. CST [AIR 1964 SC 766: (1964) 4 SCR 436].)

15. It is well settled that literal interpretation should be given to a statute if the same does not lead to an absurdity.

16. In Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC 577] this Court stated the law in the following terms: (SCC p. 589, para 37)

provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression „shall or may‟ is not decisive for arriving at a finding as to whether the statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.”

17. Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite that the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. (See Swedish Match AB v. Securities & Exchange Board of India [(2004) 11 SCC 641: (2004)

24. In Sri Ram Saha v. State of W.B., (2004) 11 SCC 497, the Apex Court has observed as under:

provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment is brought into force. If two interpretations are possible, the one which promotes or favours the object of the Act and purpose it serves, is to be preferred. At any rate, in the guise of purposive interpretation, the courts cannot rewrite a statute. A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act but the courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation.

20. This Court in CST v. Parson Tools and Plants [(1975) 4 SCC 22: 1975 SCC (Tax) 185] has taken the view that if the legislature did not, after due application of mind, incorporate a particular provision, it cannot be imported into it by analogy, observing that: (SCC p. 27, para 15) “An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded „according to the intent of them that made it‟.”

21. Further in para 16 of the said judgment, this Court has observed thus: (SCC p. 28)

22. Further para 23 of the same judgment reads: (SCC p. 29)

23. In Sankar Ram & Co. v. Kasi Naicker [(2003) 11 SCC 699] this Court in para 7 has stated thus: (SCC pp. 704-05)

regard to the object and purpose sought to be achieved by it.””

25. In view of the abovementioned Judgments, it cannot be said that the legislation has committed a mistake by not making any consequential amendment in Cr.P.C. In fact, a co-ordinate Bench of this Court in Amandeep Gill v. State (NCT of Delhi), 2024 SCC OnLine Del 6542, has observed as under:

22. It is settled law that one cannot assume a careless omission by the legislature and proceed to fill in by judicial interpretation, a casus omissus. In any event the rule of strict and literal interpretation of statutes will prevail.

23. This is further buttressed by the fact that now in 2023, when the legislature has introduced a substantive new Act for substituting the IPC and the Cr.P.C., being BNS and BNSS, it has consciously made the exclusion for the equivalent provision of 174-A IPC (being Section 209 BNS) from the equivalent provision of Section 195 Cr.P.C (being Section 215 BNSS). Both these new provisions of the new statutes are reproduced as under: Section 209 of The Bharatiya Nyaya Sanhita, 2023 („BNS‟):

(a) (i) of any offence punishable under sections 206 to 223 (both inclusive but excluding section 209) of the Bharatiya Nyaya Sanhita, 2023; or

(ii) of any abetment of, or attempt to commit, such offence; or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate or of some other public servant who is authorised by the concerned public servant so to do; (b) (i) of any offence punishable under any of the following sections of the Bharatiya Nyaya Sanhita, 2023, namely, sections 229 to 233 (both inclusive), 236, 237, 242 to 248 (both inclusive) and 267, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court; or

(ii) of any offence described in sub-section (1) of section 336, or punishable under sub-section (2) of section 340 or section 342 of the said Sanhita, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court; or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant or by some other public servant who has been authorised to do so by him under clause (a) of sub-section (1), any authority to which he is administratively subordinate or who has authorised such public servant, may, order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that— (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”(emphasis added)

24. It could be argued that, since now the legislature has sought to exclude the equivalent of Section 174-A IPC, the legislative intent even prior to BNS and BNSS was the same, although not specified in the statute in IPC/Cr.P.C. This, however, will remain in the realm of legislative speculation and it would be encroaching upon the legislative function by providing such interpretation by judicial dicta, which is not permissible. Reference may be made inter alia to Supreme Court's opinion in Sangeeta Singh v. Union of India, (2005) 7 SCC 484.

25. The decision in Maneesh Goomer (supra) being differed with, by another Coordinate Bench of this Court in Sunil Tyagi (supra), but also specifically differed with, by the Division Bench of High Court of Allahabad, Single Bench of the Punjab and Haryana High Court, Single Judge of the Madras High Court and Single Judge of the High Court of Himachal Pradesh, may not be considered as good law.”

26. Though, the coordinate Bench of this Court in Amandeep Gill (supra) has proceeded ahead to quash the complaint but this Court is of the opinion that in view of the cleavage between Maneesh Goomer (supra) & Amandeep Gill (supra) and in view of the law laid down by the Apex Court in C. Muniappan (supra), this question must be referred to a larger Bench to resolve the issue.

27. Accordingly, the Registry is directed to place this matter before the Hon’ble the Chief Justice for constitution of a Bench at the earliest to decide the issue as to whether a cognizance of offences under Section 174A IPC can be clubbed with the charges under other offences under the IPC and can the Court proceed ahead without a complaint under Section 195 Cr.P.C or not.

28. This Court is not going into the issue as to whether the Appellant must be kept in detention centre or not and it is for the FRRO to take a decision in this regard in accordance with law. It is always open for the Appellant to challenge any decision taken by the FRRO by relying on the Judgment passed by the co-ordinate Bench of this Court in Prince Ben Nnaka v. State (NCT of Delhi), 2024 SCC OnLine Del 534, wherein this Court has observed as under:

30th January, 2020, while dealing with a foreign national who was being kept in a detention centre, despite having been acquitted of the charges, observed that the foreigner could not be kept in a detention centre indefinitely. The relevant observations of the Court are set out below:

13. In light of the aforesaid judgments, once the applicant has been released from prison after having undergone his sentence, he cannot be kept in a detention centre. Continuing to hold the applicant in a detention centre would amount to violation of his rights under Article 21 of the Constitution of India. The applicant cannot be detained in a detention centre indefinitely.

14. Taking into account that the applicant may be wanted in other criminal cases in India and having regard to the other facts and circumstances, the FRRO shall take a decision with regard to the visa application of the applicant.

15. It is directed that the applicant be forthwith released from the detention centre. At the time of his release, the applicant shall furnish his permanent address and mobile number(s) to the FRRO.”

16. From a conspectus of the aforementioned judgments, the only inexorable conclusion that can be drawn is that Courts cannot, as a part of the order enlarging a foreign national on bail or acquitting/discharging or as in this case convicting but sentencing for the period of imprisonment undergone, simultaneously pass a direction to detain the person at a deportation centre. As observed in Emechere Maduabuchkwu (supra), detention centre is not a place for judicial custody but a place where foreign national is detained on an Executive order and this is the prerogative of the Competent Authority under the Foreigners Act. In light of this observation of the Coordinate Bench coupled with the observation that Courts cannot as a part of enlarging foreign national on bail direct the person to be sent to a detention centre, the argument of the learned ASC that there is no challenge to the order dated 07.04.2021 passed by learned M.M., South District, Saket Courts has no merit. Once the Petitioner was enlarged on bail, he cannot be detained without cause and due process of law. Pendency of trial in case FIR No. 481/2016 also, in my view, cannot be a reason enough to detain the Petitioner, as he is yet to be proved guilty post-trial. Therefore, counsel for the Petitioner is right in contending that the detention of the Petitioner in the deportation centre, in the present circumstances of this case, is illegal.

17. In view of the aforementioned facts and the judgments, it is directed that Petitioner be released forthwith from the deportation centre, subject to the Petitioner furnishing his permanent address and mobile number(s) to FRRO. The mobile phone shall be kept operational and active at all times. Petitioner will continue to report to the local police station every Saturday at 10: 00AM. Since the Court is apprised that passport of the Petitioner, which is valid till 27.03.2028, is lying deposited with the Trial Court, no further direction is required in this respect at this stage. It is an uncontroverted position that Petitioner has already furnished bail bonds in the sum of Rs. 20,000/- to the satisfaction of the Trial Court. Insofar as the visa of the Petitioner is concerned, it is stated by Ms. Richa Dhawan, on instructions, from the officer of the FRRO department, present in Court, that Petitioner will have to make a fresh application as the earlier application filed by him is no longer valid in view of the rule position that the application remains valid only upto four months from the date of application. Counsel for the Petitioner submits that Petitioner will make a fresh application for visa. If and when such an application is filed by the Petitioner, the decision will be taken by the FRRO, in accordance with law.”

29. The Registry is directed to place the matter before Hon'ble the Chief Justice for constituting an appropriate larger Bench to consider the issue.

SUBRAMONIUM PRASAD, J NOVEMBER 26, 2024